Good wishing Eritreans who wanted to see the end of the predicaments of their country and the installation of plural democracy have been demanding the opposition camp to unite and strengthen itself. One way of strengthening the opposition, as the Awate Team once suggested and recently buttressed by two Eritreans, is to strengthen the organisational attributes of EDA to the extent of shaping it in a form of a government in exile. For various reasons I buy a lot this suggestion. Is it not the aim of the opposition block to replace the Government of Eritrea (GoE) which the first has dubbed the latter as irreversibly dictator? If so why should the opposition feel uncomfortable with the idea of government in exile? Yet, if the EDA is to do it, it must do it rightly and effectively. We should not see again a failed government in exile as we have seen failed political organisations.

What is the aim of a government in exile or shadow government needs to be touched here briefly. The aim should be one to change the GoE. Changing the GoE could take two forms. First and preferably, it could be exerting enough pressure on the GoE so that the GoE will be forced to rehabilitate itself. Although, considering the nature of PIA, this might seem second to impossible, it should not be completely ruled out as an option. The more the opposition gets stronger the more the possibilities that PIA will call for negotiation. Second, it could be replacing the GoE, preferably peacefully, through the means of offering better alternative – thus de-legitimatizing the GoE not only in the international arena but also the hearts of Eritreans. 

Embodied in the second aim is, at least to me, one timely advantage of forming a government in exile. In the present Eritrean political context, getting a solution to Eritrea’s political suffering has to faces: (1) eliminating the GoE and (2) erecting better substitution. I am a bit suspicious of the qualities of the opposition camp; thus its ability to be better than the GoE. The African continent has seen regime changes; often the latter turning the same if not worst than the predecessor. The continent has also seen failures in power transition – the case of Somalia is lively example. In different context, the opposition could be worst than the GoE.

If we can take one assumption: that the GoE is now completely defeated in similar manner the Derg witnessed in 1991 in Eritrea; and the 13 or more political parties, as they are now, landed in Asmara to govern the country, what exactly would happen? According to the EDA Political Charter, the organisations would quickly form transitional government and the transitional government would organize national reconciliation conference. As PIA and his henchmen would be gone to Libya and Zimbabwe, the Conference could only be a gathering of predominantly opposition elements – and the reconciliation would practically be between the attendants. Every thing would go smooth and our problems would be gone for good.

There is naivety and wishful thinking in this assumption and the EDA Charter for that matter. In particular, why is it impossible for the EDA to do these now while it would be possible after eliminating the GoE? In other words, why it would be possible for the opposition to do these activities, erect a transitional government in particular, after the defeat of the GoE (bear in mind in a situation of power vacuum) and not now? Where would Eritrea be heading if, contrary to what is envisaged, the opposition ends in disputation, as it is know for – Second Somalia?  

I am skeptical of EDA’s stand that it should first control Asmara and then it would show the Eritrean public that it will be better than GoE. In the decade of the opposition’s life, there are numerous indicators that the opposition simply has not been. Thus, I would like to see, in a sort of simulated but real context, if the opposition leaders can erect and run a government - a government that stands above political parties. It is now high time for the opposition to prove it and in so doing fight the GoE in more effective manner. If the opposition can do it in a right manner, it can legitimatize itself as the Government of Eritrea in international relations arena and the Eritrean public.

However, I also strongly feel that there are many essential steps or preconditions that need to be taken before the EDA steps onto contemplating forming a government in exile. Mr Mesfin Hagos, the EDP Chair, has recently alluded to some of the preconditions. 

Taking the current state of affairs of the opposition within the broader Eritrean political spectrum, if the opposition camp is to erect a government in exile at this stage, the most critical challenge it could face is lack of legitimacy. Quantifying legitimacy of such government born in the context of present Eritrean realities is very difficult. However, it is very evident that the level of support the opposition camp has from the Eritrean public is one of the key factors. Thus, how popular is the opposition remains one of the main questions. The level of support the government in exile gets from the Eritrean public, the quality of such government and particularly its democratic attributes and diplomatic skills and the counter reaction of the GoE to such government could be important factors affecting the legitimacy of the government in exile. 

Numeric measurement, even in crude forms, of the level of support the opposition has from Eritreans in Eritrea is not available. Nevertheless, I believe that even the very existence of the opposition is not known to many Eritreans. In addition, aided by the GoE’s extremely negative propaganda, I believe the opposition is not positively perceived by considerable segment of the Eritrean public. Indeed, the GoE has exploited the boarder conflict with Ethiopia and the subsequent untenable reluctance of Ethiopia to abide by the ruling of the EEBC. The fact that the bulky of the opposition is hosted and perceivably supported by Ethiopia has, in the eyes of many gullible Eritreans, reinforced the GoE’s carbonating assertions. In this regard, one article recently posted on meskerem.com gives sufficient indications. 

Being hosted in Ethiopia, the position the opposition took with regard to the boarder dispute and the EEBC ruling and the United State’s blackmailing of Eritrea to enlist as a State that sponsors terrorism have been disappointing to many naive Eritreans. In addition, the demands and programs of some of the opposition parties are too far away from the immediate needs of Eritreans. First thing first - such demands can be raised only after a democratic government apparatus is put in place. Democracy is a process and its progression is smooth if leap-froging is followed instead of radicalism. For the same reasons and others, I also believe that the support the opposition has from diaspora Eritreans is also lower than the support the GoE has. Understandably, the GoE has been deploying any means, including coercion, to secure support from diaspora Eritreans. Nevertheless, if the opposition claims to have any level of ‘genuine’ support from diaspora Eritreans, the GoE still has it in greater quantity – hypocrisy regardless.

If the opposition is to form government in exile, how can it fix the legitimacy challenge it can face from the Eritrean public is thus an important question at this stage. In this article I classify legitimacy from the side of the Eritrean public in to two: legalistic legitimacy and popular legitimacy. This article attempts to highlight the first. In addition, the opposition will need to fight hard diplomatic battles to secure recognition for its ‘government in exile’ from at least influential States – a controversial area where international law and politics blend. You may call this international or external legitimacy.

In the present Eritrean realities, the popular legitimacy battle between the GoE and a government in exile can be demonstrated in a manner similar to a fulcrum equation – the GoE and the government in exile sitting in opposite ends. In principle, because there are only two camps (two ends) the weight debited from one side should equally credit the other side. Mainly because of its barbarity, the GoE is rapidly loosing its popularity. However, we have seen that the devilish character at one end does not automatically turn the adversary on the other end into an angel. For this reason, the account of the opposition is not equally credited. Many Eritreans have opted to stay in no-man’s-land; wishing good but also leaving the destiny of their country to take its own course. Yet, for purposes of the subject matter at hand, this body of Eritreans can be considered as abstainers with neutral effect – znegese ngusna zbereke tsehayna. Nevertheless, because the GoE is the current ngus, such Eritreans have the attributes of passive GoE’s fans.

I do not think that at present the GoE has any genuine support from meaningful portion of Eritreans in Eritrea. The GoE’s continuity in power is solely attributable to its repressive manner of governance. In his noted article written before many years (listen to the other sides?) Professor Tekei Fesehatzion explained how the image of the Eritrean Peoples’ Liberation Front (EPLF) changed from icon of proud to something that causes irritation in the minds of Eritreans. The last seven or eight years witnessed unimaginable repression; further turning the EPLF/PFDJ into a gang of oppressors that have turned Eritrea to an open air prison each year thousands of its youths fleeing away. Thus, the GoE does not have popular legitimacy as it had in the early years after independence.

In addition, from the legal angle, by its own laws and calendars, the GoE has been rendered illegal since long and thus illegitimate. In accordance with Proclamation No 37/1993 – the interim constitution – the GoE should have ended its life span in 1997 and opened the country for constitutional democracy. As I explained below, the Eritrean Constitution that was ratified in 1997 (the very Constitution that was prepared with full support of the GoE) also put an end to the life span of the GoE. Because of the border conflict which due to mishandling of the governments in Ethiopia and Eritrea escalated into devastating war, many Eritreans excused the GoE to extend its presence up to few months after the signing of peace agreement in 2000. At any time afterwards, the GoE has no justification to detainee the process of transformation to constitutional governance. If roads and dams are being constructed and the economy is ‘booming’, what makes political construction so difficult? What makes impossible for Eritreans to be governed by the laws and government they freely put in place?

Thus, the opposition has to prove its legitimacy against legally an illegitimate and unpopular adversary – the GoE. I contend that the very laws that have rendered the GoE illegitimate legitimize the opposition, if the latter could use them. For its popularity and thus popular legitimacy, the opposition needs to understand and read the hearts of Eritreans in and out of Eritrea. In this regard, the opposition needs to challenge not only the obvious Sophia’s group but also the meskerem.net’s group. The latter in particular, although opposition enough to call the GoA dictator – in fact it calls itself ‘the first Eritrean opposition website’ - is trying to immerse the opposition in difficult politics. Good politics is all about turning more supporters to your camp and the opposition needs to realize this. I also feel that the GoE, PIA in particular, is capable, although probably unwilling, of fixing its images if he can heed to what Daniel G. Mikael for example advised him. Ironic it may seem, to many Eritreans the GoE is still the lesser evil – perhaps it is chauvinism. Winning Eritreans is therefore in auction for the one who can play the cards well.

Legalistic legitimacy - legitimacy emanating form the Constitution

For those who believe that the Constitution is legitimate, in spite of the grief it entailed to fellow citizens, a government that will be formed in accordance with the Constitution is legitimate – the Constitution says it in clear terms. If the opposition elite are wise and adhere to a decent politics away from personal grudges, accepting the Constitution is not only in the interests of the Eritrean public but also in favor of the legitimacy of the opposition.

For the supporters of the GoE who have been complimenting the Constitution as a public document born out of democratic and popular participation, there is no way that they can dismiss it, unless at the risk of being utterly paradoxical. Of course the GoE has been very paradoxically in many instances. I still expect a big paradox from the GoE on the Constitution. The paradox I expect is for the GoE to start disclaiming the very Constitution that it authored to the exclusion of other brethren, as a document of not its making. Perhaps the GoE will devise a ‘conspiracy theory’ and dub the Constitution as authored by the Weyane; thus seek justification for its failure to implement it. At this juncture, imagine how good politics it would be for the GoE if any constitution is coming from Addis Ababa. Forget the role of the Sophia group in this regard; meskerem.net has started the ground work – delegitimizing the opposition as derived by hostile elements that can simply be twisted. And it is not 100% groundless assertion. If the EDA is sits in Addis to write a Charter for Eritrea or its government, it is possible that a clause on Asseb or a federal dispensation that allows Ethic groups across the Eritrea Ethiopia border to unite as one constituent unit might be pressed to blurry the boundary.

Back to the point, for the legitimacy of a government in exile, what is so important about the making of the Constitution and the GoE’s blustering about it is that a government in exile formed in accordance with Constitution can invoke the legal principle of estoppel. In this regard, to invoke estoppel is to hold a party by his own words and admissions and then denying him the chance of behaving differently from what he admitted or said; and the evidentiary value of estoppel, or admission for that matter, is very strong – something which the opposition should have done before instead of crying on their exclusion from the constitution-making process. Consider the following statement:

From the point of view of justice, the opinions of the Eritrean people must receive consideration. Nevertheless, the strategic interests of the United States in the Red Sea Basin and considerations of security and world peace make it necessary that the country [Eritrea] has to be linked with our ally, Ethiopia.

I think no one questions the strength the above often quoted statement added to the Eritrean struggle for independent statehood. Had this statement being said by Eritrean noted fathers such as Ibrahim Sultan or Woldeab Weldemariam, it would not have been as strong and as inspirational as it is. But it was said by US Secretary of State, John Foster Dulles – a very frank admission.

For the discussion at hand and in the context of holding any one by his own words and admissions, what the Constitution that is highly complimented by the GoE says is important in this regard.

Paragraph eight of the Preamble of the Constitution reads:

We the people of Eritrea  … Desirous that the Constitution we are adopting will be a covenant between us and the government, which we will be forming by our free-will, to serve as a means for governing in harmony this and future generations and for bringing about justice and peace, founded on democracy, national unity and the rule of law;

Paragraph nine also reads:

Today, 23 May 1997, on this historic date, after active popular participation, approve and solemnly ratify, through the Constituent Assembly, this Constitution as the fundamental law of our Sovereign and Independent State of Eritrea.

Six or seven years back, in a very interesting public lecture given in the New Hall of the University of Asmara (Eritreans in Diaspora: Too far away yet so close) attended even by the egoistic President of the University, the speaker, Professor Tekie Fesehatzion, identified the term ‘covenant’ in the above quoted paragraph as the most touching word to him. The noted Professor, by then respected by the huge crowd he attracted, explained the heavy meaning embodied in the word ‘covenant’ in a manner related to matrimonial relationship. So the Constitution is a covenant but breached by one party to the wedlock; so the Constitution is a fundamental law of our sovereign and independent Eritrea but the GoE ignored it which is thus tantamount to violating the sovereignty and independence of the country. In clear terms, article 2(1) provides that ‘[the] Constitution is the legal expression of the sovereignty of the Eritrean people’ – an expression which PIA belittled as a mere paper.

Further, Article 1(3) of the Constitution clearly provides:

In the state of Eritrea, sovereign power is vested in the people, and shall be exercised pursuant to the provisions of this constitution.

Most importantly Article 2(2) reads:

This constitution enunciates the principles on which the state is based and by which it shall be guided and determines the organisation and operation of government. It is the source of government legitimacy …

So the Constitution is the source of government legitimacy. The GoE is thus illegitimate by its own Constitution as it has not been established in accordance with the Constitution. In the words of the Constitution the GoE is null and void. Article 2(3) of the very Constitution the GoE wrote says so:

This constitution is the supreme law of the country and the source of all laws of the State, and all laws, orders and acts contrary to its letter and spirit shall be null and void.

On the other side, a government formed in accordance with the Constitution is thus legitimate. At least legally, the GoE and its supporters are barred from contesting the legitimacy of any government formed in accordance with the Constitution – the covenant which they adopted after popular and active participation says that it is the source of government legitimacy. Thus, in the face of the GoE’s utter reluctance to abide by the rule of law and implement the Constitution, something which Assistant Secretary of State Dr. Janday Frazer lamented about, the opposition can form a legitimate government in exile in accordance with the Constitution. And those supporters of the Constitution, yes those supporters of the GoE, are constitutionally obliged to confer due recognition to such government. Article 25(5) provides that ‘all citizens shall have the duty to respect and defend the constitution’. In addition article 2(4) clearly reads:

All organs of the State, all public and private associations and institutions and all citizens shall be bound by and remain loyal to the constitution and shall ensure its observance.

Preludes to forming a government in exile

Before the opposition contemplates forming a government in exile, there are however many requirements the opposition needs to meet. Many of these requirements have to be directed towards winning Eritreans and taking out the GoE from politically controversial areas. If there is noteworthy figure of Eritreans who consider the Constitution as national covenant, legal expression of the sovereignty of Eritrea, source of government legitimacy … the opposition needs to accept the Constitution for the sake of the interests of the Eritrean public and for the advantages it offers to the opposition. In so doing, although could remain still less popular and thus without popular legitimacy, the opposition can achieve legalistic legitimacy by the very admissions of the GoE and, by implication, supporters of the GoE. In addition, I strongly believe that accepting the Constitution also builds upon the popular legitimacy of the opposition. I will explain this later.

After publicly accepting the Constitution, the opposition need to put the GoE in clear default by demanding implementation of the Constitution within a given timeframe and in accordance with commonly negotiated and agreed framework. Many Eritrean writers have reached a conclusion that the GoE will never implement the Constitution – a very sound observation. Yet what is often not properly realized is the fact that the rule of law and the interests of the governor are always at odds that the latter cannot be expected to willfully put limitation upon itself. The GoE reluctance to implement the Constitution and abide by the subsidiary legislations should not surprise anybody. We should also very well expect the same from the now opposition forces after they grip power, if they can. It is the governed that should forcefully impose the law on the governors; and all Eritreans should share the blame with PIA for not paying the necessary scarifies for the rule of law.The opposition camp could formally, perhaps by way of common resolution, ask the GoE to implement the Constitution.

The opposition could also demand the GoE to negotiate and develop a framework for implementation. At this stage, it is very important for the opposition to use democratic tools, such as collection of signatures from Eritreans, in support of its proposal. The GoE most probably would turn a deaf ear. However, the GoE unequivocal defiance to implement the Constitution would then serve as a green light for the opposition to form a government in exile. The opposition could then translate the signatures into certificate of support for its move. Imagine a paper, call it ‘Eritrean peace plan’, demanding immediate implementation of the Constitution and signed by majority of Diaspora Eritreans who make one-third of Eritrea’s total population.

When confronted by such demand from the opposition, of course, the GoE might also resort to counter campaign – with ‘the Constitution is a paper’ as a banner. Hired apologist of the GoE may argue that the GoE is working towards putting in place a viable political system before it embarks onto implementing the Constitution – something more viable than constitutional democracy – something realizable in indefinite period of time by curbing fundamental human rights and freedoms, and muzzling democratic tenets. Perhaps the paradox I mentioned above will feature at this juncture. Because the opposition would have accepted the Constitution, the GoE would then disclaim it as alien document born in Addis around conspiracy circles working to destabilize Eritrea. Ardent apologist of the GoE will not run short of excuses. But as the lies and lame excuses of the GoE get exposed and the opposition proves itself more mature by making concessions to the GoE, I believe that many gullible Eritreans will change camps.

In this regard, another highly probably scenario is, whenever the opposition comes up with a political charter from a conference in Addis Ababa, even if the charter happens to be a copy and paste of the Constitution, the GoE and its ardent supporters would gladly label it as alien document. This is the Woyane paranoia which is affecting many of us and it is working quite well for the GoE – getting more gullible Eritreans on its side. If the GoE can label its own Constitution as a paper, it will get a name – very bad name indeed - for any paper that comes from Addis. A point of concern in this regard is that many Eritreans who openly call the GoE as dictatorship are infected by the Woyane paranoia. Is this nationalism or something else? Read meskerem.com and the article I mentioned above and you will get hint. 

The advantages of accepting the Constitution:

Many of the political parties within the opposition camp do not accept the Constitution as legitimate national covenant. Their qualms, at least the expressed ones, are largely related to the process by which the Constitution is prepared – non-participation.

The query as to the legitimacy or illegitimacy of the Constitution is relevant on the principle that not all laws that are passed by those who claim to have law-making power are legitimate. This is the democratic element of lawmaking and in this democratic era it bears importance. However, there are no fast and hard rules of quantifying the legitimacy or illegitimacy of lawmakers and the process they follow particularly in transitional periods such the Eritrean constitution-making era.

There are Eritreans who take the Constitution as legitimate covenant. There are Eritreans who do not accept the Constitution. Each side is entitled to its own arguments. However, we desperately need to agree on the point and nothing is as good as the option we take by our consensus. This is the most humble way – giving concessions and giving up positions for the better of the country. If the GoE is to change its heart and rewind us to May 1991 so that we can start matters afresh without repeating more of our own mistakes and the mistakes of Africans; or if the opposition is to be forward looking and be ready to start from 2008 without dwelling in past mistakes, the result could be much better.

Or else, in this regard if we are socked in disputation, two points need to be very clear. (1) Eritrea can have only one Constitution; and (2) no one can impose to or take away the Constitution from the Eritrean public without resorting to acceptable democratic standards of dispute resolution mechanism. With regard to its position on the Constitution, the opposition camp needs to realize this principle. On the Constitution crisis, a civilized way of disposing the legitimacy/illegitimacy contentions is to resort to a referendum. Even in the naive assumption that the opposition can remove the GoE in a manner similar to what Eritrea faced in 1991, the only right and sincere step the opposition can take afterwards is, without wasting time, to ask the Eritrean public whether or not it accepts the Constitution in a similar way to the referendum conducted in 1993. If the Eritrean public gives green light for a new constitution, well and good! But if the opposition is to write a new constitution regardless of opposing public stand, this would be repeating worst mistakes than the GoE did – winner takes all.

In addition, a bad precedent would be set – any subsequent government would come with its own constitution and flag. There is no bad rule of law as bad as the rule of human is. The body of Eritrean laws, including the charters and principles of PFDJ/GoE could not be bad. What we need is respect of these laws. Any subsequent government must be forced to bow to the existing laws and play by the rules.

When I consider all scenarios, it is much better for the opposition to meet with GoE by accepting the Constitution. Why drug the GoE and its apologist to political controversy that will supply them with excuses. Why take gullible Eritreans to grey areas. Why not hold these bodies by their own words – that the Constitution is a covenant that came to existence after popular participation, a source of government legitimacy, and the expression of the sovereignty of the Eritrean people …

At this stage, I am assuming the opposition as more democrat and flexible than PIA. Perhaps it was right for some of the opposition parties to dissent the constitution-making process and the Constitution in the early 1990s. By then the GoE was better and it was logical to hold it to higher standards. In its life span, we have witnessed increasing ugliness of the GoE. From the stock of the GoE’s deeds, the Constitution is fine achievement. And it works against the GoE – it is one means of brining about regime change peacefully if we can take it as unifying factor.

Even if the opposition believes that it is aggrieved by the way the Constitution is made, here is an opportunity for the opposition to remain an ‘aggrieved’ party and remain with important leverage. If the opposition ever thinks of sitting to reconcile and negotiate with the GoE, accepting the Constitution is the one thing that the opposition can excuse the GoE with grate honor. Imagine the opposition camp declaring as follows:

We were excluded from the constitution-making process. We were not given the honor of participating. We were not able to influence the contents of the Constitution. For these and other reasons we feel justified not to accept the Constitution. Yet, to avoid political polarization in the interests of the Eritrean public, we have accepted the Constitution – the very Constitution written by the GoE. Let’s go now for implementation … let’s launch the Bill of Rights and exercise our rights including the right to form political parties within Eritrean land. Let the Eritrean public enjoy it first and from then we will seek for a better one accordingly. 

By critiquing the process out of which the Constitution was born, the opposition is implying that it will follow a better process. Of course, no one should expect a process that satisfies all Eritreans. We all deserve to be heard: least of all it is our democratic right. Yet, many of us have to agree to live with what we don’t like. This is the unfortunate side of democracy. For the opposition’s contention, one may rightly be inclined to say ‘we will wait and see’. I have read how opposition forces start with democratic promises, end up breaching the promises after griping power, then new opposition come and then new set of democratic promises and …

Thus, what has been said by the opposition needs to be taken for what it possibly could be. Can a new process be better? The possibilities are many: it could be better, or it could be worst. A new process could even fail completely – and the opposition is known for its disunity and disputations unfortunately on minor matters. Many constitution-making initiatives have failed miserably. The mere fact that the opposition has declared to run a process of national reconciliation after it defeats the GoE cannot guarantee success of the process. The stakes of failure should also be realized.

In fact, one need not to wait until the opposition takes power and assumes the functions of transitional government and writes a new Constitution. In 2005 the EDA wrote its Political Charter by which it crudely outlined how it envisaged going about the governance of Eritrea one of which is writing a constitution after the defeat of the GoE. Thus one can look at the way the EDA envisaged handling the transitional period and developing a constitution which has, at least in paper, repeated worst errors than the process out of which the existing Constitution is born. Few examples suffice.

Article 3(2)(a) of the EDA Political Charter indicates the EDA’s plan of erecting a transitional government from the opposition camp only. As appears clear from conjunctive reading of articles 3(3) and 3(4)(2), the defeated elements will not be part of the transitional government. In addition, the defeated elements will not be included in the National Transitional Assembly the EDA planned to constitute by a National Reconciliation Conference in which all political forces and cross-sections of Eritrean public are allowed to participate. Except for the new import of National Reconciliation Conference, this is what the GoE did which, on the basis of ‘winner takes all’, the opposition critiqued the process and rejected the Constitution. The flaw of the EDA is rightly noted by the Awate Team which asked the EDA to re-considered ‘provisions for including forces that might actively participate in bringing about change inside Eritrea in the provisional government’. My attempt is not to add up two wrongs but to show that certain errors committed by the GoE are indeed humanly inevitable owing to the nature of the political setting of Eritrea immediately before and after independence. Let’s not simply be ab kunat zeywa-ale belih. Let’s also not act as political Angles.

One of the criticisms directed against the constitution-making process was that members of the Constitution Commission must have been popularly elected than appointed by the National Assembly. However, EDA’s approach in this regard is worst. As is provided under article 3(6)(2) of the Charter, the EDA gave the executive branch of the transitional government the power to establish constitution drafting commission. What is even worst, according to article 3(6)(3), the EDA gave the executive branch of the transitional government the power to establish electoral commission. In comparison, the Commission that led the constitution-making process was established by the National Assembly of the GoE.

Another factor that should inform whether the Constitution should be taken as legitimate is the content of the Constitution. In recent discourse, constitution-making process per se is given greater value – participatory process, particularly one that allows all political leaders to participate, is assumed to confer legitimacy to a constitution in many cases because largely politicians are the trouble makers. In principle, any party who did not participate in the making of a constitution but agrees with the contents of the eventually ratified one lacks valid justification to reject such constitution. Related to this point is the fact that a constitution cannot satisfy hundred percent all its subjects. Even if all the subjects embrace the same values such as democracy, rule of law and human rights, these ideals can be expressed in many forms that constitutional law experts of highest credentials always prefer one to another form. It is naïve to say that there is a model that could satisfy four million Eritreans and thus even in a participatory process, there will be looser and winner of the democratic process.

Content wise, the EDA has accepted the Constitution albeit inadvertently. The Constitution is the most concise one. As such it contains basic principles many of which are reflection of customary international law and some peremptory norms; others are codified in international treaties and still others are reflection of international soft law (declarations and resolutions). Nharnet Team of the ELF-RC has aptly buttressed this fact:

Like most of the programmes of the Eritrean political organizations, contents of constitutions are similar the world over. Let alone a document prepared by Eritrean expert like Dr. Bereket, even the two centuries’ old American constitution may have up to 70-80% relevant in its content … If we are asked to write a draft, may be over 90% of what we have in the PFDJ constitution could be acceptable.

Indeed, the EDA has accepted many of these provisions by committing itself to abide by international charters and treaties.

In addition, greater level of agreement on the contents of the Constitution emanate not only from the fact that the Constitution is very concise and refection of internationally agreed norms but also because during the struggle days for Eritrea’s liberation the views of the EPLF and ELF overlapped in many important areas. There were, however, few major differences on emotional issues that have survived up to date: the flag, the issue of Eritrean language, and land ownership and nationality. In criticizing the Constitution some from the opposition argue that in all three points the position of the EPLF was reflected in the Constitution and add that these are important issues that should have been debated seriously and, if too contentious, required a popular referendum.

However, the EDA have made it clear that such differences are not important. Interestingly, the EDA has embraced the ‘contentious’ provisions of the Constitution. Specifically on the issue of languages the only thing the Constitution provides is that ‘equality of all Eritrean languages is guaranteed’ (article 4(3)). When asked about the meaning of this provision Professor Bereket observed that it is left for the wisdom of the judiciary and by implication the legislature to handle. Indeed the Constitution does not prohibit Eritrea from adopting official language by legislation. And the EDA in article 1(6) of its Charter has indorsed this position when it clearly affirmed the equality of all Eritrean languages and decided Tigrinya and Arabic to be official languages. The only difference is thus the Constitution left issue of official language to subsidiary legislation; and the EDA will probably make it a constitutional matter.

On issue of national flag, the contention of the opposition is that the GoE in 1993 replaced the blue flag Eritrea had in the 1950s when Eritrea was semi-autonomous state with the EPLF/PFDJ flag. The blue flag was used by the liberation forces as Eritrean flag all the way during the struggle days. The opposition parties, except some of the PFDJ splinters, still consider the blue flag as the Eritrean flag.

Providing that the ‘Eritrean flag shall have green, red and blue colors with golden olive leaves’, the Constitution does adopt a similar colored flag to the one the GoE adopted in 1993 by article 10 of Proclamation No 37/1993. Article 4(1) of the Constitution however leaves the detailed description of the flag to be determined by law. In this regard, I differ from Proffessor Bereket’s position that the dimension of the flag only is left to be determined by law. Although the colors are specified, the Constitution does not specify the layout. In addition to the possibility of amending the entrenched Constitution, considering the alleged historical injustices the present flag embodies; its constitutionality can be challenged based on historical facts as mentioned in the wordings of the preamble of the Constitution. Using the colors the Constitution provides, different-looking flag from both flags can be adopted. I would go for Terry Henry’s Jersey! If we truly work for the betterment of the Eritrean public, we should stand beyond cheap politics such as disputation on flag.

On matters of de/centralization and land policy, the EDA is not specific, as is the Constitution. Perhaps knowing the devil lies on the details, even the federalist parties are not articulate on how to curve the federal units and what power to devolve on them.

Other benchmarks

Apart from the above grounds, there are many advantages in taking the Constitution as legitimate. At present, the Eritrean political ‘struggle for democratic change’ is lacking a unifying factor – a body of ideals for which citizens should struggle. One may argue that the EDA Political Charter or any charter the EDA may came up with is a common denominator for the signatory political parties. However, how would Eritreans take a charter coming from Addis Ababa is important to consider. The GoE has equated the opposition as agents of enemy forces and any document the opposition forwards, even if it be copy and paste of the Constitution, could simply get prejudiced. Then the fight would be between ‘Eritrean Constitution’ vs. Woyane’s constitution.

In addition, the Charter is crude outline of how to dispose the GoE and subsequently erect transitional government and write a new constitution. There are many problems with the EDA’s intent to write a new constitution after the ‘defeat’ of the GoE.

First, the EDA ruled out the potential the Constitution has to bring about regime change. The implementation of the Constitution is one main tool by which the opposition can score peaceful victories over the GoE. Apart from the opposition camp, the Constitution is credited as ‘progressive’ ‘beautiful’ and the process is dubbed as ‘democratic’ and ‘participatory’ by politically influential quarters. In addition, the main criticism the GoE is facing from the same quarters is for its reluctance to implement the Constitution. Thus, pressurizing the GoE to implement its own Constitution is simpler project for the opposition than to tell Eritreans and the world community that the opposition is into kicking the GoE from power first and then writing a new Constitution. Instead of holding the GoE by its own words, the opposition is leading us to politically controversial stand.

By accepting the Constitution which the opposition did not participate in its making, the opposition could have proved that it does not suffer from typical opposition syndrome of ‘boycotting everything’ an incumbent government does. In so doing, the opposition could have proved that it is civilized one.

As I tried to explain above, two desirable consequences could follow the opposition’s acceptance of the Constitution. First, when a united pressure of Eritreans join the call from non-Eritreans for the implementation of the Constitution, it is possible to force the GoE to accept implementation of the Constitution in short and agreed timeframe. Second, in the alternative, after putting the GoE in clear default, as explained above, the opposition can convincingly form a constitutional government in exile thus leading the struggle for democratic change in Eritrea in a unified manner following the very principles the GoE subscribed to.

Another problem with the EDA’s position of rejecting the Constitution is the EDA’s over-simplistic and narrow perception of the transitional period in which it contemplated writing a new constitution. The entire EDA transitional project is scheduled to post the fall of the GoE; and the collapse of the GoE the EDA envisaged is the same kind of regime change Asmara witnessed in May 1991 – total collapse of the GoE. The EDA is very naïve to assume so. As far as the EDA remains weak and disunited, Asmara can produce another government that can contend with or monopolies power. In such situation, if the local force is to chart out implementation of the Constitution as a matter of priority and call the EDA to participate would the EDA insist on a new process? If it does and the local forces agree, it would fine. However, in case the local force insist on implementation of the Constitution, then the current position of EDA could entail huge political loss to EDA because the Eritrean public is not into luxury of choosing between constitutions. On the other hand, EDA that has accepted the Constitution, or EDA that already formed shadow government in the Diaspora based on the Constitution can be a force strong enough to influence Asmara. In case Asmara faces military coup, such EDA can also force a military regime to swiftly allow civilian government to take power.

Even if the local forces agrees for afresh constitution-making process in accordance with the EDA political Charter, coming up with an agreed constitution can not be taken as a simple matter. What must be particularly bore in mind is the atmosphere in which the process takes place and whole range of other factors. The present Constitution is written in a mood of optimism and jubilation – an important aurora to hammer agreements. A new venture might not get similar advantage. One factor that can be taken as inevitable is that those who participated in the past constitution-making process would approach the new initiative with dissenting tendencies and high standards. If the new constitution is to look very similar to the existing one, then ‘re-inventing the wheel’ would haunt the new venture. If the draft of the new constitution is to show big difference, dissenting would be another problem. At the very least, fault finding is simple.

Along this line, the political maturity of the ‘would be’ key actors should be considered. In addition, the state of ‘semi-political vacuum’ in which the actors negotiate is important to bear in mind. The EDA naively fails to contemplate the possibility of failing to achieve its goals which can lead to chaos. At present, the main unifying factor for the opposition block is the repressive GoE in Asmara. Apart from this unifying factor, although not different in their programs, the history of the opposition political parties is known for forming rounds of alliance and ending up in disputations. The formation of EDA in 2005 and the agreement 16 political parties reached on a Political Charter brought hopes. However, the EDA divided into two blocks a year later on matters that should not be important. Thus, there is a real concern that a leadership vacuum in Asmara that would give free opportunity for all the opposition parties to land in Asmara and form transitional government could fail. Considering the weakness and disunity with the opposition, Eritreans are thus rightly worried of what Asmara will produce thereafter. I would really like to see the opposition forming a government exile and showing us that could do it without making the Eritrean public guinea pig.

Furthermore, if a sudden political vacuum is to ensue in Eritrea, the Constitution accepted by the opposition can be a national covenant that can salvage such situation. One may argue that the Political Charter of the EDA is a unifying factor. But it only includes the opposition camp and ardent supporters of the GoE may decline it with the same political and legal ‘justifications’ as the EDA did with the Constitution. In deed, unlike the Constitution the Charter is the product of political leaders who are alienated from the Eritrean public.

In addition, rejection of the Constitution will definitely entail legal chaos in Eritrea. Potentially, all the laws (proclamations and legal notices) hitherto passed and the international treaties ratified by the GoE can be challenged on the same ground the Constitution is confronted. Indeed, considering the undemocratic lawmaking process, very few of these laws can pass the legitimacy standard the Constitution is subjected to. The opposition parties are not articulate on how to handle such phenomenon.

Popular legitimacy

Secondly, the opposition needs to build up popular legitimacy – an area in which the opposition has so far failed miserably. At a time the adversary (GoE) has turned in to a regime that has inflicted mass suffering on the Eritrean people, the opposition have failed to attract the lost mass. To the contrary, I still believe that the GoE is the lesser evil. The opposition needs to fight hard battle in this regard.

It is not the intent of this article to dwell on how the opposition can gain popularity. Crude suggestions are however in order. The opposition can do this, among others, by standing wiser beyond minor matters that unfortunately in the eyes of gullible supporters of the GoE mean a lot. If the noted Professor Tekie Fesehatzion has reservations on political parties that advocate for regime change in collaboration with PMMZ, it should not be difficult to see how Eritreans that only listen to the GoE’s propaganda machinery perceive the opposition. If the opposition’s diplomatically coached statements and positions with regard to the EEBC ruling irritate well-informed Eritreans, it should not be difficult how the Eritrean mothers who lost around 19,000 of their kids perceive the opposition. If at this time head-quartering in Addis upsets considerable number of Eritreans, the opposition should realize that there are more 190 countries in the world. If the agendas and programs of some of the political parties at this stage worries considerable number of Eritreans, such organisation are unattractive from the very start and can serve only to disappoint the Eritrean public. The point here is about making good politics and good politics is all about popular support. A look at the recent contents of www.meskerem.net should give the opposition enough lessons. The opposition needs to understand properly nationalism and perhaps chauvinism as well. Most importantly, ‘unity with diversity’ is what the Eritrean public expects from the opposition; and as far as possible the unity should include the GoE.